Law Commons^™

A Primer Of Opinion Writing For Law-Clerks, George R. Smith

Vanderbilt Law Review

Not all appellate judges make the drafting of tentative opinions a part of their law clerks' duties. The practice, however, is increasing, perhaps as a result of the mounting case loads that now occupy the time of most appellate courts. Opinion writing by law clerks is certainly so widespread today that no symposium devoted to the duties of law clerks would be complete without some discussion of the subject. Except for the matter of final responsibility for the opinion, the problems that confront a law clerk in the preparation of an opinion include those that confront the judge himself in …

Stock Options And The Tax Reform Act Of 1969: The Question Of Continued Utility, John W. Bonds, Jr.

Vanderbilt Law Review

This Note attempts its own exploration of the compensatory utility of stock options, beginning with brief sketches of the early tax law relating to options; the developing legislative, regulatory,and judicial refinements; and, the state of the law immediately prior to the Tax Reform Act. The basic operating provisions of the new Act and the proposed regulations are then examined as they relate to both statutory and nonstatutory stock options. After out-lining the goals that employers and employees seek by using stock options, the Note's conclusion attempts to analyze the degree to which those goals may still be attained in light …

Recent Cases, Vanderbilt Law Review Staff

Vanderbilt Law Review

Civil Rights--Private Education-Racially Discriminatory Admissions Policies Violate Right to Contract Provision of 42 U.S.C. § 1981

Plaintiffs, ' blacks who had been denied admission solely on the basis of their race to two all-white private schools that received no state aid,' sought damages and injunctive relief in federal district court contending that these rejections violated section 1981 of 42 U.S.C. by denying them the same right to contract as enjoyed by white citizens.

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Copyright--Telecommunications--CATV Importation of Distant Television Signals Constitutes Infringement Under Sections One (c) & (d) of the Copyright Act

Plaintiffs,' creators and producers of television programs,brought a …

Sample Instructions To Law Clerks, Frederick G. Hamley, Ruggero J. Aldisert

Vanderbilt Law Review

Sample Instructions to Law Clerks

Sample A -- Law Clerks for Judges of the Ninth Circuit Court of Appeals

Frederick G. Hamley

General Responsibilities

1. You should therefore adopt a professional attitude at the outset. 2. You will need to employ industrious work habits. 3. Cultivate efficient, time-saving ways of doing your work. 4. Make this a year of continuing legal education and an intensive training period. 5. You will come into possession of information concerning the processing of appeals which must remain secret until the opinions are filed. 6. Your prime loyalty is to your judge. 7. All of …

Observations Of An Appellate Judge:The Use Of Law Clerks, Eugene A. Wright

Vanderbilt Law Review

Time-judicial time-is our most valuable commodity. We must employ it effectively and efficiently if we are to keep abreast of new developments in the law, new areas of litigation, and modern procedural improvements and to dispose of increasing backlogs of appealed cases. Circuit judges, each authorized two law clerks, have become increasingly dependent upon the help of their staffs to meet the demands of their expanding workload. The role of the law clerk is to aid the experienced judge in his ultimate task, decision-making. An appellate judge will have a varied background of skills and experience. Often he brings to …

Choosing Law Clerks In Massachusetts, Robert Braucher

Vanderbilt Law Review

About the summer of 1875" Chief Justice Horace Gray of the Supreme Judicial Court of Massachusetts "began a practice, which he continued until the end of his judicial career, of employing a young graduate of the Harvard Law School as a secretary. At first he paid the expense of this from his own purse, but before he had been many years at Washington" as a Justice of the Supreme Court of the United States "the Government provided for the appointment of a clerk for each of the justices of the Supreme Court. His colleagues generally appointed as their clerks stenographers …

Prehearing Research And Screening In The Michigan Court Of Appeals: One Court's Method For Increasing Judicial Productivity, T. John Lesinski, N. O. Stockmeyer, Jr.

Vanderbilt Law Review

An overview of the organization and duties of the Michigan Court of Appeals may aid in understanding the function and operation of its prehearing system. The Michigan Court of Appeals is an intermediate appellate court of statewide jurisdiction.' It hears appeals taken as a matter of right from both civil and criminal judgments of inferior courts,' and has original jurisdiction in specified habeas corpus, superintending control, apportionment, quo warranto, and mandamus proceedings. The court also hears appeals by leave, including applications for delayed appeal not timely filed as of right, appeals from state administrative agencies (principally workmen's compensation awards), and …

American Independence And The Law: A Study Of Post-Revolutionary South Carolina Legislation, James W. Ely, Jr.

Vanderbilt Law Review

Joseph Brevard, a South Carolina judge, observed in 1814 that "the laws of a country form the most instructive portion of its history." Certainly the successive printed collections of state statutes are among the most reliable and readily available sources for early American legal history. While statutes on their face do not reveal the extent to which they proved effective, the fact remains that to a unique degree statute law, as the product of the legislative process, mirrors the considered values and ideals of a society. Yet the legal history of South Carolina, and indeed that of most southern states, …

California V. Larue: The Twenty-First Amendment As A Preferred Power, Robert D. Kamenshine

Vanderbilt Law Review

While the twenty-first amendment rationale of LaRue appears to pose a threat to certain individual rights, that amendment has been recognized by at least one state supreme court as a legitimate vehicle for combating racial discrimination in private clubs'--an area of discrimination generally regarded as beyond the reach of government and probably involving fundamental rights of association and privacy. Because of the dual potential of the state power found in the twenty-first amendment and the questionable desirability of the use of that power, this article evaluates the LaRue decision, explores its unusual twenty-first amendment rationale, considers alternative approaches the Court …

The Supreme Court's Jurisdiction--Reform Proposals, Discretionary Review, And Writ Dismissals, James F. Blumstein

Vanderbilt Law Review

With judicial reform a matter of intense public debate, it is essential that one understand the political consequences that may result from the adoption of various reform measures. Moreover, it is important to recognize that an evaluation of any proposed change must proceed from one's conception of the role of the Supreme Court in our society and one's perception of the foundations of its legitimacy. Similar considerations also must shape one's analysis of the rule of four and the Court's practice of dismissing certiorari as improvidently granted. While discretionary review increasingly has politicized a large portion of the Court's work, …

A Comparative Description Of The New York And California Criminal Justice Systems: Arrest Through Arraignment, Floyd F. Feeney, James R. Woods

Vanderbilt Law Review

The purpose of this article is to outline by comparative description the arrest and related court processes for handling criminal defendants in New York City and Oakland, California. Hopefully the description will shed light on problem areas shared by both systems and will suggest ways of alleviating these problems. This article discusses the period from arrest through the first judicial appearance in each system. A later study, not yet completed, will detail the sequence between the first judicial appearance and the beginning of trial. For the purposes of convenience and because the term is widely used both in California and …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Criminal Law-Confessions-- Government Can Satisfy Its Burden of Proving Waiver of Miranda Rights By Showing Warnings Given, Signed Waiver, and Proof of Defendant's Capacity to Understand the Warnings

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Criminal Procedure--Grand Jury-Attorney Work Product Consisting of Written Summaries and Personal Recollections of Interviews Is Privileged Against Disclosure at Federal Grand Jury Investigations

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Public Employees --Freedom of Association-Discharge of Non-policy-making Public Employees on Ground of Political Affiliation Infringes Employees' Freedom of Association

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Torts--Wrongful Death-Common--Law Cause of Action for Wrongful Death Exists Under Massachusetts Law

Book Reviews, Arthur D. Austin, John N. Hazard

Vanderbilt Law Review

The Case Against Oligopoly: A New Perspective--

Campaigns of corporate aggrandizement have always attracted a wide assortment of camp followers, with politicians and academics among the most persistent. To the politician, corporate size is a convenient and headline-provoking punching bag (and, during election time, a plentiful source of funding), while many a professor has established a reputation--and made money--by criticizing, extolling, or analyzing its various components. In a series of public hearings, the Senate Subcommittee on Antitrust and Monopoly, with Dr. John Blair as chief economist, produced a subdued blend of both callings. Drawing heavily but not exclusively from the …

Labor Law--The National Labor Relations Board Redefines And Restricts The Scope Of Managerial Employee Classification, Law Review Staff

Vanderbilt Law Review

The National Labor Relations Act (NLRA)' provides that certain classes of employees are excluded from the Act's coverage of bargaining unit formation and employee activity. The National Labor Relations Board has added to this unprotected category two classifications of employees--those who are engaged in management policy formulation or effectuation (managerial employees) and those who assist management in the formulation of labor relations policies (confidential employees)--because of their close affiliation with management. The concept of managerial employee, however, has not been defined precisely and thus has given rise to considerable confusion when applied in various factual settings. In two recent Board …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Remedies--Fair Labor Standards Act--Private Damage Suit Unavailable to Redress Violations of Child Labor Provisions of the Fair Labor Standards Act

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Securities Regulation--Commercial Paper-Promissory Notes with Maturity Not Exceeding Nine Months but Offered to Public as Investment Are "Securities" Within Section 3(a)(10) of the 1934 Act

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Securities Regulation-Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5-- A Reorganization in the Form of a Tripartite Merger in Which There Is No Change in the Total Assets Represented by a Share of Stock Does Not Involve a"Purchase or Sale" Within the Meaning of Section 10(b)of The Securities Exchange …

Recent Developments, Law Review Staff

Vanderbilt Law Review

Preservation of internal union solidarity through the exercise of disciplinary power over members has been recognized as an essential prerequisite to maintenance of a strong bargaining position vis-a-vis management.' Therefore, courts have afforded unions relative freedom to discipline members who violate rules of internal union government. Somewhat different principles of union discipline, however, are applied to members who occupy supervisory positions with the employer.' The employee-member is loyal primarily to his union, but the loyalty of the supervisor-member ultimately is two-dimensional:' he is loyal to the union by virtue of his union membership and to the employer by virtue of …

Recent Development: Comment, Law Review Staff

Vanderbilt Law Review

The National Labor Relations Act (NLRA)' provides that certain classes of employees are excluded from the Act's coverage of bargaining unit formation and employee activity. The National Labor Relations Board has added to this unprotected category two classifications of employees--those who are engaged in management policy formulation or effectuation (managerial employees) and those who assist management in the formulation of labor relations policies (confidential employees)--because of their close affiliation with management. The concept of managerial employee, however, has not been defined precisely and thus has given rise to considerable confusion when applied in various factual settings. In two recent Board …

Developments In Contemporary Landlord-Tenant Law: An Annotated Bibliography, Edward J. Ashton, David E. Brand, Richard K. Greenstein, Andrew M. Kaufman, Susan S. Lissitzn, John K. Ross, Jr.

Vanderbilt Law Review

The law changes. Sometimes the change is slow, perhaps agonizing,as in the case of labor law. Sometimes the change is swift and amicable as when a uniform code is universally accepted. But sometimes the law appears to stand still. Then, as society undergoes profound evolution,the law lurches and jerks about, trying to dispense justice with outmoded concepts in an alien context. If the legislatures fail to come to the rescue,it then devolves upon the courts to cut the traces and institute reforms. Such has been the case with the law of landlord and tenant. The massive changes that have been …

Constitutional Requirements For Standardized Ability Tests Used In Education, Lewis D. Beckwith

Vanderbilt Law Review

This Note examines the groundwork for possible legal remedies to correct the abuses of tests and testing procedures used by some educators. Because the standardized ability tests administered as prerequisites to college admission are perhaps the most significant obstacles to an individual's educational development, the discussion herein is directed primarily to them. This Note attempts to demonstrate that existing legal doctrines provide an adequate basis for challenging some of the standardized ability tests used in determining college entrance requirements as violations of equal protection and procedural due process. It also discusses the scope of a proper remedy for individuals aggrieved …

"To Secure These Rights": The Need For A New Majority Coalition, Hubert H. Humphrey

Vanderbilt Law Review

We have learned in the last two decades important lessons in both the law and the politics of civil rights. I wish to underscore certain of these realities in outlining a civil rights strategy for the decade of the 1970's. We look back at the civil rights battles of the 1950's and 1960's with an air of nostalgia. In those years the legislative goals were relatively well defined: the removal of a host of legal barriers t, civil equality and equal opportunity. More than this, the legal barriers existed primarily in one section of the country so that the lives …

More Than Law, Anthony J. Celebrezze

Vanderbilt Law Review

In mid-1963, at hearings' on what was to become the Civil Rights Act of 1964, I expressed my regret that some 37 years prior to the end of the twentieth century we found it necessary to take up legislation that dealt with basic human rights. Today, nearly a decade later, I express a similar regret that those rights have not yet been realized for every citizen of this nation.

The Negro College: Role And Prospect, Herman H. Long

Vanderbilt Law Review

American higher education, especially in the Negro college, is in a time of major crisis; the institutions are beset by many new problems and issues. Perhaps at no other time in the nation's history has higher education been more widely discussed and written about in the public press as well as in educational circles. Indeed, higher education has emerged in recent years as a national issue that ranks close to the problems of poverty, welfare, and the decline of the cities. A national policy on higher education is being formulated; resource allocation priorities are being determined; and Congress is struggling …

Race, Housing, And The Government, Nancy E. Leblanc

Vanderbilt Law Review

The problem of race and housing is complicated and limited by several factors not present in other racially controversial areas. First,the limited supply of decent housing forces the exercise of some selection in allocating existing housing resources. Second, housing is relatively fixed in nature and has a long usable life. Third, housing constitutes part of a neighborhood or a community--a total fabric of living. Finally, because of the individual nature of most transactions of buying or renting--except when a suburban tract or a new apartment house is concerned--enforcing the laws prohibiting racial discrimination in housing is very difficult. Analyzing each …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Injunctions--Contempt Power--Citation Proper Against Nonparty Who Violates Court Order in School Desegregation Case

Whether an injunction or other order binds one not a party to the underlying suit or proceeding so that he may be held in contempt for violation is a question that always has troubled the courts. Some early cases purported to announce a sweeping and apparently absolute rule--that an injunction or other order does not bind nonparties. The principle underlying this rule is that due process forbids a court to adjudicate the legal rights and relationships of a person who has not had the opportunity to be …

Justice As Fairness: A Commentary On Rawls's New Theory Of Justice, Gilbert Merritt

Vanderbilt Law Review

A Theory of Justice,' John Rawls's new book on social and legal philosophy, appears likely to become a monument of systematic thought comparable to Locke's Second Treatise of Government and Mill's Utilitarianism. It provides answers systematically to the most difficult questions of our time and promises to shape the thought and action of men for many years. Daniel Bell, a noted social scientist, has said that in Rawls "we can observe the development of a political philosophy which will go far to shape the last part of the 20th Century, as the doctrines of Locke and Smith molded the 19th."' …

Racial Discrimination And The Right To Vote, Armand Derfner

Vanderbilt Law Review

Lawyers in voting discrimination cases are fond of quoting Justice Frankfurter's dictum that "the [Fifteenth] Amendment nullifies sophisticated as well as simple-minded modes of discrimination."' Unfortunately for historical accuracy and for the health of our society, this statement simply has been false for most of the century since the passage of that amendment. In the past fifteen years, however, a change has begun, and the right to vote without discrimination has gained substance. This Article is an effort to describe today's law of voting discrimination, and how that law developed. Because the present state of this area is so largely …

Post--Brown Private White Schools--An Imperfect Dualism, James E. Smith

Vanderbilt Law Review

Federal courts have endeavored to assure that private discrimination practiced by schools is truly private. In this endeavor, courts have enjoined any significant state involvement as violative of the equal protection clause. The courts have shown no inclination to prohibit the private discrimination itself, however, and it appears unlikely that courts in the near future will take the innovative step of barring discrimination practiced by private white academies.

Developments In The Law Of School Desegregation, T. A. Smedley

Vanderbilt Law Review

Eighteen years after the Brown decision declared that racially dual school systems violate constitutional rights of students and therefore must be abolished,' the developments in this area of life and law still primarily involve efforts to find an answer to the practical problem which arose immediately after the Brown ruling: How does one abolish a dual school system? Today, relatively few people openly contend that public schools ought to be operated on a racially segregated basis, but the problem of identifying and implementing acceptable means of achieving desegregation has proved to be virtually unsolvable. Although the federal courts initially displayed …

The Unique Problems Of The Black Businessman, Flournoy A. Coles, Jr.

Vanderbilt Law Review

This Article concentrates on problems of black businessmen rather than those of all minority businessmen for 3 reasons: first, there are more statistics on the business and other aspects of black economic life than on other nonwhite minorities; secondly, the available statistics suggest that black Americans rank lowest on the totem pole of business activity in this country--lower than any other nonwhite minority except perhaps for American Indians; thirdly, many of the solutions suggested for remedying the problems of black business enterprise would apply to the similar problems that other minority groups have encountered.

An End, And Perhaps A Beginning, Tom C. Clark

Vanderbilt Law Review

As one who has devoted his professional lifetime, now in its fifty-first year, to the development of procedures and techniques for the improvement of the administration of justice, I say that there is no substitute for the original research furnished by the Race Relations Law Survey in the race relations field. It has made the most practical contribution to the improvement of race relations of any publication. One might compare this contribution to that of our law clerks here on the Court, who research and report on state and federal decisions previously made on a given topic. However, the Survey …